General terms and conditions (GTC) for OpenCall GmbH

Version 1.1 dated 01.09.2019

General terms and conditions for the service “Service Telephone”, a product of the OpenCall GmbH

Preamble

The OpenCall GmbH (hereinafter: contractor or OpenCall) offers its clients different phone services, call center- and other services (hereinafter: services). The offer and the services of the OpenCall GmbH aim exclusively at industrial companies, professionals, non-profit organizations and associations (hereinafter called client). The offer is not aimed at consumers. Different terms and conditions, service descriptions and prices of the client are not accepted by OpenCall, unless OpenCall has agreed to them in writing. These terms and conditions apply even if OpenCall delivers services to the client despite awareness of conflicting or deviating terms and conditions of the client.

OpenCall is entitled to change the terms and conditions within a period of 2 weeks. Changes of the terms and conditions will be announced to the client in writing or by E-Mail. The client can object to the terms and conditions change within 2 weeks. If the client objects, OpenCall and the client have the right to terminate the contract properly.

§ 1 Subject of service

OpenCall provides the services according to the tariff or package chosen by the client and in consultation with the client. As far as an agreement in individual cases was not possible, OpenCall provides these individual services within the meaning of the selected tariff and the usual business activity. The scope of services in detail stems from the service description and the terms and conditions.

OpenCall is committed to provide all services always properly and with the utmost care. Yet, it can not totally be excluded, that in some cases information is transmitted to OpenCall incompletely, unclear or incorrect or employees or other agents have understood or recorded and redirected contents not entirely clear or incorrectly. The contractor assumes no liability for the correctness and completeness of the information supplied.

If the client wants to take advantage of an OpenCall local telephone number, which differs from the registered office of his business, the client has to ensure compliance with the relevant legal regulations. The contractor can check this obligation by requiring a proof for the local reference. If this proof is not supplied, the contractor may stop or refuse using the local phone number.

If the selected tariff includes the use of one or several phone numbers of the contractor, there is no claim for the use of certain numbers or number blocks. The phone number is not part of the subject matter of the contract, i.e. OpenCall remains holder of all rights and obligations to the telephone number. The client has no claim to the transfer of the number, not even after the termination of the agreement.

If OpenCall provides other services available (e.g. additional addresses, disk space, phone numbers etc.) to the client within the framework of cooperation, the contractor also remains owner of all rights. This also applies to services that were introduced by OpenCall after the start of the order. The use is limited to the term of the contract. There is no entitlement after the end of the contract.

The message text can be defined by the client. If the greeting exceeds the usual manner and extent, OpenCall reserves the right to shorten it to a reasonable level. The client is informed about this.

If the client has pre-booked more business services and processes (such as, for example, shipping documents, order assumptions, information grants, etc.), they have to be reconciled in advance with the contractor and have to follow a standardized and efficient structure. OpenCall reserves the right to improve this process.

If the selected package includes the notification of, for example, call answering, call notes, faxes, etc., OpenCall only owes the timely and proper dispatch of the message. The timely retrieval of notification falls to the client.

If the client chooses additional telephone service numbers and subcontracts, they may only be used by the client or his employees. A transfer to third parties is prohibited. A license to other companies of the client is only possible if the welcome message is in connection with the main contract. A termination of the main job automatically leads to the termination of additional telephone service numbers and contracts.

The contractor reserves the right to take a temporary restriction of the services for good cause. This may be the case for e.g.: short-term occupancy of service phone places due to unpredictable above-average call volume, necessary maintenance and repair work to maintain or improve the service, technical system changes of hardware and software

OpenCall will take all reasonable measures to avoid or keep such restrictions as low as possible.

The contractor is entitled to have the services fulfilled completely or partly by third parties, if this does not conflict with interests of the client and the third party has equivalent security and confidentiality standards.

If the contractor changes the scope of services during the contract term, he has to inform the client about it. If service reductions for the client result from the change, he may terminate extraordinarily within one month after notification. If the client does not exercise this option, the change in the scope of services is approved. The contractor shall notify the client about the period and the non-compliance to meet the deadline.

§ 2 Start date

The contract between the client and the contractor is concluded with the submission of the application for conclusion of the contract and registration of client data by the contractor at the latest with the effective start of the service. The contractor sends an order confirmation with the essential data for the desired service to the client, as far as these were not already in the application.

If OpenCall grants the client a free trial period, the service provided is limited on getting to know and test the services of OpenCall. I.e. that in particular using the service beyond ordinary operation is not permitted (for example, large-scale, one-time marketing campaigns during the free trial period) and may immediately be terminated by OpenCall.

The contractor reserves the right to reject the contract for good cause. This applies in particular if a termination has already occurred, a default action has been initiated, an insolvency proceeding is already opened, necessary credit lacks etc. If OpenCall rejects a client, he has to pay a corresponding fee for services that potentially have already been used.

The contractor may request the provision of a security deposit before the start of certain services. 3 times of the expected sales of the respective service can be viewed as an adequate security deposit.

The contractor reserves the right to verify the identity of the client and his legal representatives before the conclusion of the contract and during the contract period. The client undertakes to cooperate here. OpenCall may continue to require the submission of trade -, commercial -, corporate-, and tax law documents. Until achievement, the contractor is entitled to suspend all or individual services, yet receiving the full remuneration.

The contract or order is closed for an indefinite period or granted, if not otherwise agreed. Indefinite contracts can be terminated with a period of 2 weeks to the end of the month.

The period of notice is extended for longer contract periods as follows:

From the 1st year the period is 1 month towards the end of the quarter.

From the 3rd year the period is 3 months towards the end of the quarter.

From the 6th year the period is 6 months towards the end of the year.

The notice has to be made in written form.

The right of immediate termination for good cause remains unaffected.

Good causes, that qualify OpenCall to termination without notice include:

If the client is in arrears with 2 monthly payments, or the amount of the compensation claim exceeds the value of 2 average months.
If the services are used by the clientfor criminal, regulatory and/or immoral purposes or a reasonable suspicion for this type of use exists.
The security deposit is not provided in time.
An insolvency procedure has been opened or rejected due to lack of mass.
If a person or company related with the client has already been resigned.

The contractor is entitled to obtain information about the client at the credit reference agencies. The client agrees to the transmission of data if no higher interests of the client indicate otherwise. The contractor shall provide information on the data to the client upon request.

§ 3 Duties and rights of the client

The client is obliged to the timely and proper payment of the agreed remuneration.

The client may not hand over or allocate the use of its accounts and services to third parties in any way. Third parties are all natural and legal persons derogating from the main and subcontract.

The client is responsible for the completeness and accuracy of his data, which are necessary for carrying out the services. The contractor shall be informed about changes of this data immediately. The communication can be in writing or by phone, using the phone password.

The client declares that OpenCall, in order to fulfil the contract, does not violate any business discretion and exepts the contractor of any third-party claims which, due to the above obligation to maintain confidentiality, proceed against the contractor.

The client is solely responsible that the circuit for call forwarding is installed correctly. The contractor shall only ensure that the technical reception facilities are ready.

The client is obliged, insofar it is apparent to him, to notify the contractor about the expected volume of calls exceeding the previous average level of calls. The contractor reserves the right to reduce call handling if necessary to the usual measure.

The client is obliged to inform the contractor if the named contact person is not available for more than 3 weeks. He is responsible, that his technical facilities and call diversions are operating correctly during this time.

Change requests require the explicit identification of the client because they are not implemented otherwise. These explicit change requests can be made by telephone, using the phone password and/or by email from an email address created by OpenCall.

With regard to possible incomplete, unclear or inaccurate information gathering and processing, it is the client’s duty to cooperate. The client has to consult the caller to a reasonable extent, to dispel confusion and to prevent any occurring damages, or keep them as low as possible. This applies in particular to operations, with significant economic and other consequences for the client or his customers.

Does the client not fulfil his obligations, the contractor is entitled to protect his own interests or his employees to reveal to third parties that he is working as an external service provider for the client.

§ 4 Duties and rights of the contractor

The contractor agrees to provide the services properly and carefully, to avoid interruptions and to resolve them timely. The obligation to eliminate begins only after the contractor has been notified by the client.

OpenCall undertakes to treat information, which is gained in the context of a project with confidence and to forward them to third parties only after expressively instructed by the client. This does not apply if the contractor is required to do so by law. The duty of confidentiality continues after termination of the contractual relationship. The contractor obliges all employees and supervisors to secrecy and data protection.

§ 5 Fees

The compensation complies with each booked service or tariff – and package price (see the currently valid terms and price list). Prices do not include statutory VAT. The prices can consist of a one-time setup price, a monthly deployment and use-dependent prices. The use-dependent fees are mainly used for call answering, – processing, post-processing and forwarding. OpenCall charges all accepted calls even if they include no useful information; for example, the caller dialed the wrong number or a fax was sent to the telephone number. Partial minutes are rounded up to the full minute on the basis of clocking per minute.

The contractor reserves the right to change the fees or the scope of services for the various services and benefits, if after conclusion of the contract cost reductions or increases occur. This can be, for example, price increases by third party or in-house cost changes. In case of a change in service prices, OpenCall informs the client. If disadvantages arise, the client hast the right to terminate the contract within one month. If the contractor receives no notice within this period, the change of scope or price shall be considered approved.

Accounting period is the relevant calendar month. The setup fee is due before the start of the ordered service. The monthly deployment is to be paid in advance. The use-dependent fees are provided at the end of the month in billing.

If a limit order is agreed with the client, this will be charged upon reaching.

The fees are due within 10 days after invoicing. On the 11th calendar day after the date of the invoice, the client is in default and the contractor reserves the right to cease the service with costs until the final and complete payment.

Under exceptional circumstances, where particularly cost-intensive services are booked, OpenCall reserves the right to require a deposit. The amount of the deposit is usually 3 times the expected turnover of the service. The deposit does not bear interests. At discontinuation of the cost-intensive security reason, the deposit will be returned immediately.

§ 6 Objections of the client

The client has to raise objections against the invoice in writing within 4 weeks after receipt of the invoice. The invoice is deemed approved if the client has not objected within this period. The raising of an objection does not relieve from the obligation to pay, as long as the objection was not recognized by the contractor. The client is not entitled to withhold payments or recover (for example return debit), until the objection is confirmed by the contractor.

§ 7 Liability

The contractor shall be liable only for damage that he has caused intentionally or with gross negligence or that result from a breach of essential contractual obligations.

For negligent breach of contract, the liability is limited to foreseeable, typically occurring damage and is also limited to 3 times the previous monthly average turnover. OpenCall is in particular not liable for indirect damages due to ordinary negligence, such as for example, lost profits. Liability is excluded in all other instances. This liability is without prejudice for a culpable injury to life, limb or health; this also applies for compulsory liability arising from the Product Liability Act.

The contractor shall not be liable for any damage caused due to power failures, provider failure, failure of telecommunications service providers, as well as force majeure, unless, it can be proven that the contractor negligently caused the disorder.

All claims for damages against OpenCall are to claim 6 months after knowledge.

§ 8 Privacy Policy

The client allows the contractor to answer/message on his behalf and therefore resigns the respective name and intellectual property rights.

OpenCall collects, stores and processes personal data in compliance with the statutory provisions in the context of the orders.

§ 9 Concluding provisions

This contract shall be governed exclusively by the law of the Federal Republic of Germany. Application of the UN Sales Convention is excluded.

The general business conditions only apply in the German language. Versions in other languages are non-binding translations and are for information purposes only.

Place of fulfilment is Ulm

The ineffectiveness of individual provisions of these terms and conditions or the contract, do not touch the validity of the other provisions. The entirely or partially invalid regulation shall be replaced by one, which economic success is as close as possible to the invalid one and as close as possible to the intention of the parties. The same applies if a scheme of facts is not expressly regulated.

The exclusive place of jurisdiction for all claims and disputes arising from this agreement is Ulm.